Prior to 1947 and the introduction
of the first Citizenship Act, there was legally no such thing as
Canadian citizenship. Both native-born and naturalized citizens were British
subjects. In 1977, the current Citizenship Act came into force,
making extensive changes to the law. The effect was to make citizenship
more widely available (for example, by reducing the period of residency
required from five to three years), and to remove the special treatment
for British nationals and the remaining discrimination between men and
women.(1) The Act also provided
that Canadians could hold dual citizenship, reversing the previous situation
in which citizenship was lost upon the acquisition of the citizenship
of another country. An important conceptual change also came about in
1977, when citizenship became a right for qualified applicants rather
than a privilege as it had been in the past.

In early 1987, the government
announced plans to bring in amendments to the Act. In June 1987, the Minister
of the day issued a discussion paper entitled Proud to be Canadian,
which outlined a number of issues and options for change and called for
public comment. No further parliamentary action was taken at that time,
however, apart from some minor amendments to the Act in the following
years.

The Liberal government elected
in 1993 announced its intention to overhaul the Act, and asked the Standing
Committee on Citizenship and Immigration to provide its advice. This appeared
in the report Canadian Citizenship: A Sense of Belonging, which
was presented to the House of Commons in June 1994; however, no bill was
forthcoming in the 35th Parliament.(2)

A Canadian citizen is a
person who possesses Canadian citizenship by birth or through the naturalization
process under the Canadian Citizenship Act.

The Citizenship Act
specifically provides that a naturalized citizen is entitled to all the
rights, powers and privileges, and is subject to all the obligations,
duties and liabilities, of a citizen who was born in Canada. The Act further
states that a Canadian citizen by naturalization has the same status as
a Canadian citizen by birth.(4)
Thus, a naturalized citizen gains the right to vote in and run as a candidate
for federal and provincial elections, the right to enter, remain in and
leave Canada, the right to certain minority educational language rights,
and the right to apply for a Canadian passport.

Persons considered to be
natural-born Canadian citizens can be born either in Canada (with exceptions
for foreign diplomatic personnel), or outside Canada if, at the time of
birth, one parent is a Canadian citizen. Such a parent cannot be an adoptive
one.(5)

There has recently been
some discussion and controversy in this country about whether or not Canada
should modify the aspect of its current citizenship law that grants automatic
citizenship to anyone born on Canadian soil.(6)
In May 1994, Citizenship and Immigration Canada raised the issue for discussion
in a paper entitled A Citizenship Strategy, prepared for the Standing
Committee on Citizenship and Immigration.(7)
The document posed the question:

Should the
current practice of extending an automatic right to Canadian citizenship
as a result of being born on Canadian territory be dependent on one
of the parents being a permanent resident or a citizen, unless the
child would otherwise be stateless?

In its June 1994 report
Canadian Citizenship: A Sense of Belonging, the Standing Committee
noted that the entitlement to citizenship arising from birth on Canadian
territory could be subject to abuse. It noted particularly that some women
appeared to be coming to Canada solely for the purpose of giving birth
here and thereby assuring their babies of Canadian citizenship.(8)
The Committee therefore recommended that children born in Canada should
be Canadian citizens only if one or both of their parents is a permanent
resident or Canadian citizen. As had the government, the Committee stated
that this rule should not apply if its application would render a child
stateless; it also recommended that there be an exception for children
born to Convention refugees and refugee claimants whose claims are accepted.(9)

The Minister of Citizenship
and Immigration, the Hon. Lucienne Robillard, was quoted in the press
recently as saying that the issue was being studied for possible inclusion
in a citizenship bill to be presented to Parliament. The Minister spoke
of an additional factor to that mentioned by the Committee:

We have a situation with
the Immigration Act where we decide to remove people to their
countries and suddenly the kid was born in Canada, the kid is Canadian.
But neither of the parents are Canadian or landed immigrants. The kid
is. So do we have to do something about that?(10)

In response to the Ministers
comments, the Canadian Council for Refugees wrote her an open letter requesting
that no change be made to the current law in this area. The letter put
forward a number of arguments:

Unlike citizenship
by birth, citizenship by naturalization is not acquired automatically.
Thus, it is not possible to acquire citizenship merely by marrying a Canadian
or by residing in Canada for a certain period of time. Citizenship by
naturalization must be applied for and the requirements of the Citizenship
Act must in the vast majority of cases be met; however, in order to
alleviate cases of special or unusual hardship or to reward services of
an exceptional value to Canada, the Act provides that the Governor in
Council may direct the Minister to grant citizenship, even though the
requirements of the Act are not met.(12)

The Minister must, according
to the Act, grant citizenship to a person who makes an application therefor
and

a) is 18 years
of age or over;

b) has been
lawfully admitted to Canada for permanent residence and has, within
the four years immediately preceding his or her application, accumulated
at least three years of residence in Canada, according to a stipulated
formula;

c) has an
adequate knowledge of the English or French language;

d) has an
adequate knowledge of Canada and of the responsibilities and privileges
of Canadian citizenship; and

e) is not
under a deportation order (or) the subject of a declaration by the Canadian
government to the effect that there are reasonable grounds to believe
that granting citizenship to the person would be prejudicial to the
security of Canada or that the person would engage in organized crime.(13)

An applicant for Canadian
citizenship must be 18 years or age or over.(14)
The Act also sets out special procedures for the naturalization of children.
For instance, a child under 18 who has been admitted for permanent residence
may be granted citizenship at the same time as his or her parents.(15)

In order to qualify for
citizenship, a person must have been lawfully admitted to Canada for permanent
residence, (i.e., as a landed immigrant) and must have resided in Canada
for a total of three years within the four years immediately preceding
the date of the application for citizenship. Residence beforebecoming
a permanent resident can be included in this time period. The three years
of residence are calculated as follows:

1)
For every day of residence in Canada before coming a permanent resident,
a person is deemed to have accumulated one-half day of residence.

2)
For every day of residence in Canada after becoming a permanent resident,
a person is deemed to have accumulated one day of residence.

A person cannot accumulate
residence for any period during which he or she is under a probation order,
is a parolled inmate, or is confined in a jail or reformatory.(16)
As noted, the residence requirement does not apply to children who are
being naturalized with their parents.

Despite the apparent clarity
of the method of calculating the three-year period of residency, the word
"residency" is not defined in the Act; consequently, judicial
decisions with radically differing interpretations of the requirement
have seriously complicated the law. The Act came into effect in 1977;
in the following year, a case decided by the Federal Court held that actual
physical presence in Canada was not necessary in order to fulfil the requirements.
What the applicants needed was a significant attachment to Canada throughout
the period, even if physically absent. Attachment might be evidenced by
such indicators as a retained residence, accounts in Canadian banks, investments,
club memberships, provincial driving licences, and so on. The result,
in its extreme form, is that some applicants have been granted Canadian
citizenship even though their total time actually in the country amounted
to mere days or a few months.

Other judges of the Federal
Court, however, have disagreed strongly with this approach and have been
unwilling to excuse lengthy absences from the country. The contradictory
caselaw that has developed around this issue has led to unpredictability
and uncertainty in the law and, in the view of some, has seriously compromised
the residency requirement, and the value of Canadian citizenship in the
process.

The 1994 report of the Standing
Committee recommended that the definition of residence in the Act should
require a meaningful degree of physical presence. In this, the words of
one Federal Court Judge were quoted with approval:

So those who would throw
in their lot with Canadians by becoming citizens must first throw in
their lot with Canadians by residing among Canadians, in Canada, during
three of the preceding four years, in order to Canadianize themselves.
It is not something one can do while abroad, for Canadian life and society
exist only in Canada and nowhere else.(17)

An applicant for citizenship
must demonstrate an adequate knowledge of one of Canadas two official
languages.(18) Upon the
recommendation of a citizenship judge, the Minister may waive this requirement
on compassionate grounds,(19)
and does so routinely for older persons. In its 1994 Report, the Standing
Committee recommended that the Minister should continue to have the power
to waive the language requirement, but should not exercise it routinely.
Rather, it should be exercised on a case-by-case basis and only following
a genuine effort on the part of the applicant to learn the language.(20)

An applicant for citizenship
must display an adequate knowledge of Canada and of the rights and responsibilities
of Canadian citizenship.(21)
Applicants are asked questions with respect to Canadas political
system, geography and history which are based on information supplied
free of charge by the government. Again, the knowledge requirement may
be waived by the Minister on compassionate grounds.(22)
As in the case of the language requirement, the Standing Committee recommended
that the Minister should waive this requirement only on a case-by-case
basis and only following a genuine effort on the part of the applicant
to learn a sufficient amount about the country.(23)

An application for citizenship
will be denied where the applicant is under an order of deportation or
where the Governor in Council (i.e., federal Cabinet) has declared that
there are reasonable grounds to believe that the person will engage in
activity:

(a) that constitutes
a threat to the security of Canada, or

(b) that is
part of a pattern of criminal activity planned and organized by a number
of persons acting in concert in furtherance of the commission of any
offence that may be punishable under any Act of Parliament by way of
indictment.(24)

The Act sets out the process
that must precede this decision. If the Minister is of the opinion that
an individual is in the category described above, he or she may make a
report to the Security and Intelligence Review Committee (SIRC).(25)
The Minister must also inform the person of the report and of the possibility
that, after an investigation, the Governor in Council will make the declaration
referred to above. Administratively, the process is initiated by the Canadian
Security Intelligence Service investigation that is conducted in relation
to all applications for citizenship.

SIRC must send the person
concerned a statement summarizing the relevant information so that he
or she may be as fully informed as possible of the circumstances that
gave rise to the report. After completing its investigation, SIRC reports
to the Governor in Council and provides the individual with its conclusions.(26)

Should the Governor in Council
make a declaration, the persons citizenship application is deemed
to be not approved, and any appeal to the court is deemed dismissed. The
declaration expires after two years, but another declaration may be made
should the person make a later application for citizenship.(27)

A major flaw in the foregoing
provisions came to light recently, when Ernst Zundel made an application
for Canada citizenship. The Minister reported to SIRC that in his opinion
Mr. Zundel was a threat to the security of Canada. SIRC, had issued a
report the previous year in which Mr. Zundel was described as a prolific
publisher of hate literature, a holocaust denier, a member of the radical
right, and an associate of groups labelled as aggressive racists and neo-Nazis.
Mr. Zundel applied to the Federal Court for an order prohibiting SIRC
from investigating the Ministers report on the ground that there
was a reasonable apprehension of bias on the part of SIRC such as to breach
the duty of fairness he was owed. In its decision, the court agreed, stating
that this was a case where legislative action might be called for.

In response, Parliament
amended the Immigration Act and the Citizenship Act late
in the 35th Parliament to provide that in a case where SIRC is unable
to fulfil its investigatory duties under either Act, the Governor in Council
can appoint a retired judge of a superior court to sit in its stead.(28)
Interestingly, the Federal Court of Appeal later overturned the lower
court ruling and found no impediment to SIRC's review of Mr. Zundel's
application.

The Citizenship
Act expressly provides that, notwithstanding anything in the Act,
a person shall not be granted citizenship while he or she is on probation,
on parole, imprisoned, or charged with, on trial for, or directly involved
in an appeal relating to, an indictable offence under any Act of Parliament
or an offence against the Citizenship Act.(29)
Additional prohibitions added in 1987 preclude convicted or suspected
war criminals from obtaining citizenship.

The Act further provides
that an applicant cannot be granted citizenship if, in the three years
immediately preceding the date of application, he or she has been convicted
of an indictable offence under any Act of Parliament or an offence against
the Citizenship Act.(30)
The application for citizenship requires the applicant to state whether
or not he or she is in any of these circumstances.

The Act provides that a
person can lose Canadian citizenship in several ways. People who were
born outside Canada after 1977, and who are citizens because one of their
parents has Canadian citizenship also on such grounds, lose their citizenship
when they turn 28 unless they make an application to retain it, have registered
as a citizen, and have either lived in Canada for at least one year prior
to the application or can establish that they have a substantial connection
to Canada.(31) This is called
derivative citizenship.

In its 1994 report, the
Standing Committee criticized these derivative citizenship rules and called
for citizenship to be restricted to the first generation born abroad.(32)
The Committee concluded that affording citizenship to people who have
minimal connections to Canada does nothing to enhance the value of Canadian
citizenship or build a strong community in this country. The report also
noted the difficult administrative and evidentiary issues that can arise
with the current provisions.(33)

As noted above, the Governor
in Council may make an order that a person ceases to be a citizen where
the person obtained citizenship or permanent residence by false representation,
fraud, or by knowingly concealing material circumstances.(34)
The order can only be made following a report of the Minister; and the
Act sets out the procedure the Minister must follow, beginning with notice
to the individual. The person may request that the Minister refer the
case to the Federal Court, which must agree that the person has obtained
citizenship by fraud before the Minister may make the report.(35)

A person may also apply
to renounce his or her citizenship under certain circumstances. The person
must already be a citizen of another country or about to become one if
the renunciation application is accepted. He or she must not be a minor,
or the subject of a security declaration or reside in Canada and must
not be prevented from understanding the significance of the act by reason
of mental disability. The Minister may waive the requirements relating
to residence and mental ability on compassionate grounds. A successful
application results in a certificate of renunciation.(36)

A person who has ceased
to be a citizen may apply to resume his or her citizenship, which the
Minister will grant, provided the person is not the subject of a security
declaration or an order revoking citizenship on the basis of fraud, is
not under a deportation order, and has been a permanent resident in good
standing for at least one year prior to the application.(37)
The last requirement means that, unless the person is a member of the
family class, he or she must pass the points test; this may prove problematic
for some applicants.

As noted before, there are
a number of offences under the Citizenship Act. These include making
false or fraudulent statements or concealing information relating to citizenship,
and improper use of Certificates of Citizenship. The Standing Committee
noted that since the Act came into force in 1977 much has changed. Fines
appropriate at that time have by now been eroded by inflation, and the
offence provisions are now inadequate to respond to the advances in technology
that threaten the integrity of citizenship documents. The Committee also
noted that the provisions needed to be strengthened and harmonized with
comparable provisions in the Criminal Code and the Immigration
Act.(38)

As noted, changes introduced
by the 1977 Act permit dual citizenship. Before that time, Canadians who
voluntarily acquired another citizenship, except by marriage, lost their
Canadian citizenship. Until 1973, the regulations had also required applicants
for citizenship to renounce their former citizenship, although whether
that renunciation was legally effective depended on the law of the former
homeland. When the government asked the Standing Committee to provide
advice to the government in 1994, it did not highlight the issue as one
that needed addressing, nor has it done so since.

Nevertheless, during its
hearings, the Committee agreed with a number of witnesses who questioned
the meaning of loyalty and allegiance where people hold dual or multiple
citizenships and suggested that such a policy devalues the meaning of
Canadian citizenship. For this and other reasons, the Committee recommended
that the government explore the possibility of reinstating the former
rules, so that an adult Canadian citizen who voluntarily and formally
acquired the citizenship of another country(39)
would cease to be a Canadian citizen.(40)
Appendix B contains list of major countries that do recognize dual citizenship
and those that do not.

All adults granted
citizenship, and all children 14 and older, must take the oath or affirmation
of citizenship specified in the Schedule to the Act. It reads as follows:

I swear (or affirm) that
I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth
the Second, Queen of Canada, Her Heirs and Successors, and that I will
faithfully observe the laws of Canada and fulfil my duties as a Canadian
citizen.

In its 1994 hearings,
the Standing Committee found a wide divergence of views on the oath. Though
some witnesses argued strongly that it should be retained in its present
form, more witnesses, while not necessarily opposed to mention of the
monarchy, wished to see Canada given prominence. The Committee tried to
satisfy the variety of viewpoints by proposing the following oath:

I pledge full allegiance
to Canada and Her Majesty Queen Elizabeth the Second, Queen of Canada,
and swear to faithfully obey the laws and fulfil my duties as a citizen.

In 1994, following
the Committees report, Citizenship and Immigration Canada asked
a group of 10 noted Canadian writers to work as a team to draft a new
oath.(41) This was the result:

I am a citizen of Canada
and I make this commitment: to uphold our laws and freedoms, to respect
our people in their diversity, to work for our common well-being and
to safeguard and honour this ancient Northern land.

Assuming that the
oath may be changed in some way as part of a general revision of the Act,
the inclinations of the government will likely be to avoid controversy
as much as possible. In May 1996, the then, and current, Minister of Citizenship
and Immigration stated:

This is a difficult decision
to make, because I realize that when you speak about changing the oath,
people think you want to change all the monarchy system. We dont
want a discussion like that in Canada right now. I dont know if,
in the history of Canada, it will happen one day. But this is not the
question right now.(42)

Citizenship judges are appointed
by the Governor in Council and are responsible under the Citizenship
Act for considering applications for grants of citizenship (and other
applications) to see if they meet the requirements of the Act and regulations
and for advising the Minister if they do. The Minister then grants citizenship,
a power delegated to officials. Applications that are not approved may
be appealed to the Federal Court. Citizenship judges also administer the
oath of allegiance and have certain ceremonial duties.

Soon after the general election
of 1993, the Minister announced that these patronage positions would be
eliminated and that no more citizenship judges would be appointed. At
the time, there were some 50 judges across the country, who continued
to perform their statutory duties until the law could be changed.

As noted above, however,
no bill effecting a general revision of the Citizenship Act, has
been introduced; in June 1996 the necessary amendments were included in
an omnibus bill that would have amended a large number of statutes.(43)
That bill, however, died on the Order Paper at the end of April 1997 when
the 35th Parliament was dissolved and the election called.

Meanwhile, with no new appointments
being made, the number of citizenship judges dwindled as their terms expired.
By the spring of 1997, the number had reached 19, with only one judge
to serve all of British Columbia. As the backlog in applications grew,
the Minister has been required to appoint new judges so that the application
process could continue.

Most people gain their citizenship
at birth by means of one of two main legal systems. The first is the British
common law system, under which citizenship is obtained by virtue of the
place of birth -- jus soli -- regardless of the citizenship
of the parents. The second is the tradition based on Roman law, which
gives primacy to the citizenship of the parents -- jus sanguinis,
regardless of where the child is born.(45)
The two systems are not incompatible; some countries extend citizenship
by both means, as does Canada. Nor are the rules uniform. On the contrary,
because each country defines its own citizenship, there are variations
on each concept. For example, although Canada accords full and automatic
citizenship based on the jus soli rule, other countries may grant
few rights, or none at all, merely by virtue of a persons birth
on their territories.

For each of the following
countries, it will be assumed (rather than being repeated each time) that
birth on that countrys territory conveys citizenship if one of the
parents is a citizen. This is really jus sanguinis, and applies
wherever the birth takes place.

From its earliest days,
the United States followed the British rule of jus soli, supplemented
by jus sanguinis where the father was American.

Following the American civil
war, the United States adopted the 14th Amendment to the Constitution:
"All persons born or naturalized in the United States, and subject
to the jurisdiction thereof, are citizens of the United states and the
state wherein they reside." The amendment served to assure the primacy
of federal citizenship and to secure the citizenship status of the newly-freed
slaves.

Birth in Denmark confers
no automatic right of citizenship on children. If a child born to foreigners
lives in Denmark for ten years, and has lived there since the age of 16,
he or she has the right to apply at the age of 21 to be naturalized; additional
requirements would apply (such as knowledge of the language, no criminal
record and so on).

JAPAN

Birth in Japan to non-Japanese
parents confers no citizenship rights.

SWEDEN

Birth in Sweden to non-Swedish
parents confers no citizenship rights.

SPAIN

Birth in Spain to non-Spanish
parents does not confer citizenship, although individuals born there are
given some additional privileges in the naturalization process.

NORWAY

Birth in Norway to non-Norwegian
parents confers no citizenship rights.

ITALY

Birth in Italy to non-Italian
parents does not confer automatic citizenship. If a child born in Italy
lives there legally and continually from birth, he or she may make a declaration
at the age of 17 and become a citizen at the age of 18.

This note contains two lists:
one of countries that do permit dual citizenship, and one of countries
that do not recognize dual citizenship in the sense that nationals who
voluntarily acquire the citizenship of another country lose citizenship.
The word "voluntarily" is important, as exceptions are often
made for acquisition of another citizenship by chance, by birth in Canada,
for example, or by birth to two individuals who, by the laws of their
own countries, each passes on his or her own citizenship. (Often the children
will have to choose citizenship when they reach the age of majority.)
It should also be noted that some countries that do not allow dual citizenship
as a general rule, permit it when there is an agreement with a reciprocating
state.

(1)
There remained a question of discrimination that was recently settled
by the Supreme Court of Canada. Under the Act, children born abroad before
1977 of women who were Canadian citizens (children who formerly would
not have qualified for citizenship) are required by the Act to make an
application for citizenship, including a criminal and security check.
Children born abroad before 1977 to a Canadian father, in contrast, need
only register their births. In early 1997, the Supreme Court held this
provision to be discriminatory and in violation of section 15 of the Canadian
Charter of Rights and Freedoms. See Benner v. Canada
[1997] 1 S.C.R. 358.

(2)
House of Commons, Standing Committee on Citizenship and Immigration, Canadian
Citizenship: A Sense of Belonging, June 1994 (hereafter, Standing
Committee Report).

(5)Ibid., s. 3. In 1993 the Canadian Human Rights Commission held
this to be a discriminatory practice following a complaint by the parents
of two adopted children who wished to continue living abroad. The government
applied for judicial review of the decision to the Federal Court which,
in 1994, upheld the provision (Canada (Attorney General) v.
McKenna [1994] 1 F.C. 694). The provision continues to be contentious
among parents living abroad who adopt children and who wish them to have
the same status as children born to them.

(6)
The only exceptions are the children of people in Canada with diplomatic
immunity, provided neither of the parents is a Canadian citizen or permanent
resident. This is the international practice.

(7)
The earlier discussion paper on citizenship, Proud to be Canadian,
did not raise the issue at all.

(8)
These children cannot sponsor their parents for permanent residence in
Canada until they are 19, but can do so at that time; in the meantime,
or when they are ready for university, they have access to the school
system on the same basis as other Canadians; that is, foreign tuition
fees do not apply.

(28)An Act to amend the Citizenship Act and the Immigration Act, S.C.
1997, Chap. 22, assented to 15 April 1997, in force 20 May 1997.

(29)Citizenship Act, s. 22(1). Offences under the Act include making
false or fraudulent statements or knowingly concealing any material circumstances
for any purpose related to citizenship, using anothers Certificate
of Citizenship, giving a Certificate of Citizenship to someone else to
use, and trafficking in Certificates of Citizenship (s. 29).

(41)
According to an Angus Reid Survey for Citizenship and Immigration Canada
conducted in January 1996, 51% of respondents felt that a new oath of
allegiance should remove any reference to the monarchy and 38% felt that
allegiance should be pledged to both Canada and the monarchy. Only 5%
favoured swearing allegiance only to the monarchy ("Drop Oath to
Queen, 51% Tell Poll," Toronto Star, 16 August 1996,
p. A2).

(44)
The information relating to the first six countries in this section is
drawn from a paper written by William Kaplan for Multiculturalism and
Citizenship Canada entitled Canadian Legislation: A Comparative Study
of France, Germany, Switzerland, the United Kingdom, the United States
and Australia (July 1991, hereinafter, Kaplan). The information for
the remaining countries was received from officials at the embassies in
Ottawa.

(45)Jus soli ("law of the soil")and jus sanguinis
("law of the blood") transmit citizenship (normally) at
birth. Other ways of obtaining citizenship include by marriage, adoption,
and through naturalization.

(56)
Spain allows dual citizenship for those who acquire the nationality of
a Latin American country, Andorra, the Philippines, Equatorial Guinea
or Portugal. The citizenship law of Spain has been somewhat unclear since
a court decision holding that Spanish citizenship is not lost upon acquiring
the citizenship of a non-exempt country unless there has been a formal
renunciation.